DHS seeking reconsideration of MacLean decision

Jul. 11, 2013 - 07:40PM
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Robert MacLean, a former air marshal seen here at his Federal Law Enforcement Training Center graduation, is citing whistleblower protections in a lawsuit to overturn his firing.

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The Department of Homeland Security is faulting a three-judge appellate court panel for “fundamental errors” in its April ruling in favor of Robert MacLean, a former air marshal who is citing whistleblower protections in fighting the agency’s decision to fire him.

Although the Whistleblower Protection Act generally shields federal employees who disclose certain types of information, for example, the panel went too far in concluding that agencies can’t carve out an exception for “sensitive security information,” lawyers for the department said in a Wednesday filing. DHS is seeking a re-hearing either by the panel or the full U.S. Court of Appeals for the Federal Circuit.

Tom Devine, legal director at the Government Accountability Project, a whistleblower advocacy group helping to represent MacLean, said the government “is refusing to accept defeat.”

“It’s about power over federal workers,” Devine said in a phone interview. “It’s not about making the country safe.”

The case’s origins date back a decade. In 2003, MacLean told the media that the Federal Air Marshals Service was pulling marshals from cross-country flight at a time when the nation was on alert for hijackings because it couldn’t afford hotel rooms. The Transportation Security Administration, an arm of DHS, fired him in 2006, and MacLean says they retroactively designated the information he revealed as sensitive security information to justify his dismissal.

In their latest filing, the DHS lawyers said the three-judge panel sought to craft a compromise position that on the one hand lets agencies prevent the release of information under the Freedom of Information Act, but on the other “must permit an employee to disclose that same information if the employee is a whistleblower.”

The panel’s decision thus “gives individual employees the authority to rely upon their own judgment to weigh the balance between the harm they hope to reveal through whistleblowing and the harm their SSI revelations will cause to national security,” the filing said. Congress, however, “explicitly provided that authority to the heads of the transportation security agencies.”